War Risks in a Voyage Charterparty

War Risks in a Voyage Charterparty

War risk provisions in a voyage charterparty are intended to give the shipowner, the master, and in some circumstances the charterer a workable contractual system when war-related dangers threaten the agreed maritime adventure. The commercial aim is not simply to excuse non-performance. The clause also gives practical alternatives: cancellation before loading, refusal to load or continue loading, discharge at another safe port, compliance with official directions, preservation of freight rights, recovery of additional expenses, and protection against allegations of deviation.

The traditional Voywar 1950 wording is broad. It treats war risks as including blockade, actions announced as blockade, sabotage, piracy, actual or threatened war, hostilities, warlike operations, civil war, civil commotion, and revolution. Those expressions are not merely decorative. Each one identifies a category of danger that may affect whether the ship is required to proceed, whether cargo must be loaded, where cargo may be discharged, and who must bear the extra costs caused by the altered performance.

A voyage charterparty normally fixes a specific commercial route: a loading range or port, a cargo, a discharge range or port, and a freight bargain. War risk clauses recognise that this route may become unsafe or commercially impossible in a way not covered by the ordinary wording of the charter. The clause therefore modifies the normal performance structure, but it does not give the shipowner unlimited freedom. The shipowner or master must still bring the circumstances within the contractual wording, exercise any discretion in good faith, and act reasonably in the light of the facts known at the time.

The Commercial Function of the War Risk Clause

The principal function of a war risk clause is to avoid forcing a ship into an adventure that exposes the ship, cargo, master, or crew to extraordinary political or military peril. In ordinary voyage charterparty law, the charterer may have a duty to nominate a safe port, and the shipowner may have a duty to prosecute the voyage with due despatch. War risk wording qualifies those duties by giving the shipowner and master a contractual veto against employment that would expose the maritime adventure to defined war-related hazards.

The clause overlaps with safe port principles, but it is not identical to them. A port may be physically safe in a nautical sense while being commercially dangerous because of war, blockade, seizure, piracy, or hostile operations. Conversely, a war risk clause may provide its own machinery for substitute discharge or cancellation, making it unnecessary to treat the matter purely as a breach of the safe port warranty.

The clause may also operate as a partial code. Where the wording gives shipowners express rights to refuse, redirect, discharge, or recover expenses, the parties’ ordinary remedies must be read together with those rights. A court or tribunal will usually begin by examining the clause itself, the charter as a whole, and the factual matrix in which the charter was made.

Meaning of War Risks

The expression war risks is deliberately wide. The use of the words “shall include” indicates that the listed perils are not necessarily exhaustive, although in practice the list covers most situations that can sensibly be described as war-related marine risks. The wording reflects the language of marine war risk insurance, and this connection helps explain why the clause includes risks such as piracy and sabotage alongside more obvious military events.

The fact that a peril is mentioned in the clause does not automatically justify cancellation or deviation. The relevant question is whether performance of the charter will expose the ship, cargo, master, or crew to that risk at some stage of the adventure. A distant conflict with no realistic connection to the route, the port, the cargo, or the ship will not normally be enough.

Blockade and Actions Announced as Blockade

A blockade, in its strict sense, involves the use or threatened use of force to prevent access to or departure from a place. It must be effective in practical terms, not merely theoretical. A port is not necessarily blockaded just because ships entering or leaving it face a general danger of attack. However, that same danger may still fall within another part of the war risk wording, such as hostilities, warlike operations, civil commotion, or similar peril.

The clause also refers to action announced as a blockade. This wording is important because it reduces the need for fine distinctions based on public international law. A shipowner may not need to prove that a legally perfect blockade exists. It may be enough that a government, belligerent, or organised body has announced action as a blockade and that the announcement is accompanied by some practical capacity or action capable of affecting the ship.

The commercial test is practical. The issue is not whether diplomats or international lawyers would classify the situation as a formal blockade. The issue is whether the ship is likely to be exposed to detention, seizure, attack, or serious interference by reason of the announced blockade or the action accompanying it.

Governments, Belligerents, and Organised Bodies

War risk wording is not confined to recognised national governments. It may also include a belligerent or organised body with effective power to interfere with shipping. This approach reflects the realities of maritime trade. A ship may face danger from a de facto authority, revolutionary force, armed faction, or organised military group even if that body is not recognised as a lawful government.

The clause looks to practical control rather than legal status. A body capable of stopping ships, enforcing restrictions, seizing cargo, or threatening passage may be sufficient for the clause, even if its authority is disputed. The line is likely to be drawn where there is no real organisation, no effective power, and no practical ability to affect the voyage.

Sabotage

Sabotage is not usually treated as a narrow technical term. In the charterparty context, it should be understood in a practical maritime sense. It normally requires conduct with a hostile or warlike character, such as deliberate damage, interference, mining, destruction, or other purposeful action directed against ships, ports, cargo facilities, or the movement of trade.

Not every form of obstruction is sabotage. A commercial boycott, labour blacking, ordinary riot, or disorganised disturbance may not be enough unless the facts show a hostile and organised character of the kind contemplated by war risk wording. Other heads of the clause may still apply if the disturbance amounts to civil commotion, hostilities, or warlike operations.

Piracy

Piracy has a specialised legal meaning, but the practical idea is robbery or attempted robbery at sea, without lawful state authority, accompanied by force or threat of force. It may occur near the coast and may occur in territorial waters where the attack is maritime in character. The important elements are the unlawful maritime attack, the intent to steal or seize, and the presence or threat of violence.

Simple theft from a ship without force or threat of force may not be piracy, even if the thieves are armed. Similarly, politically organised seizure for a public objective may not be piracy in the strict sense, although it may fall within another war risk category such as seizure, hostile action, civil commotion, or warlike operation, depending on the wording and the facts.

Modern maritime practice often treats piracy and violent robbery as operationally connected risks, especially where ships pass through high-risk waters. Nevertheless, where the clause uses the word piracy without special extended wording, careful attention must be paid to the nature, motive, location, and violence involved in the incident.

Actual War and Threatened War

Actual war is usually straightforward where war is formally declared or where armed conflict is plainly taking place between states or organised belligerents. Modern conflicts may not always be declared, but a real state of war can still exist if hostilities are in fact being conducted.

Threatened war is more difficult. It should normally require more than market anxiety or a general political risk. A clear threat, ultimatum, military warning, mobilisation, or comparable public act may be needed. Commercial certainty is served by requiring something more definite than speculation, although the clause still operates prospectively because shipowners and masters must decide before the risk actually materialises.

Sanctions, diplomatic tension, public condemnation, or political pressure do not automatically amount to threatened war. They may become relevant if they are linked to a real likelihood of hostile action affecting the ship, but they do not by themselves transform the voyage into a war risk adventure.

Hostilities and Warlike Operations

The terms hostilities and warlike operations widen the clause beyond declared war. Hostilities refer to acts or operations of war by belligerents, including those occurring during civil conflict. Warlike operations may be broader, covering acts similar to those carried out in war even if no formal state of war exists.

The character of the operation matters. A naval unit may perform an ordinary policing or administrative function that is not warlike. Conversely, a merchant ship may become involved in activity directly connected with hostilities. The analysis depends on the context, the purpose of the act, and its connection with war or armed conflict.

Risks left over from historic wars, such as old ammunition or abandoned mines, may present grave physical danger, but they do not necessarily amount to current warlike operations. The clause is concerned with the operation of war-related perils in the adventure, not with every dangerous remnant of a past conflict.

Civil War, Civil Commotion, and Revolution

Civil war is an internal war. It requires organised opposing sides, hostile action, and a degree of coherence in leadership, purpose, and administration. It is more than general disorder, even if the disorder is violent and widespread.

Revolution may involve the replacement of a government or political system by non-constitutional means. It may be accompanied by violence, but the central idea is a fundamental change in political authority or governmental structure.

Civil commotion occupies a middle ground between ordinary riot and civil war. It requires public disturbance with turbulence, organisation, or general purpose. A mindless crowd may not be enough, but a popular rising, insurrectionary movement, or serious public upheaval may qualify if it threatens the ship, cargo, master, or crew.

When the Clause Becomes Operative

The operative language normally turns on whether it appears that performance will subject the ship, master, crew, or cargo to war risks. This wording contains two important controls. First, the risk must appear on an objective and commercially reasonable basis. Second, the future exposure must be sufficiently probable to justify the exercise of the contractual rights.

The clause does not permit cancellation or refusal merely because the shipowner feels nervous. The master or shipowner must consider the facts properly, make any necessary inquiries, and act honestly and in good faith. The discretion cannot be exercised arbitrarily, capriciously, or unreasonably.

At the same time, the shipowner does not need to prove that attack, seizure, or loss is certain. War risk clauses deal with risk, not with accomplished disaster. A real prospective exposure to a listed peril may be enough, provided the conclusion is supported by the facts available at the time.

Avoidable War Risks

A risk that can be avoided by reasonable measures may not justify reliance on the clause. If safe routing, timing, official clearance, convoy procedures, or ordinary prudent navigation will remove the danger, it may be difficult to say that the ship will be subjected to the relevant war risk.

However, the required precautions must remain within reasonable commercial and navigational limits. If avoidance requires extraordinary measures, exposes the ship to a different serious hazard, or changes the adventure radically, the shipowner may still be entitled to rely on the clause. A ship should not be forced into a militarised or highly abnormal method of performance merely because, in theory, the risk can be reduced.

Risks Existing When the Charter Was Made

A difficult question arises when war risks already existed at the time the charterparty was concluded. If the parties contracted with knowledge that the ship would trade to a particular area affected by war risk, the shipowner may be taken to have accepted that level of danger. In such a case, reliance on the clause may require proof that the risk has materially changed or increased after the charter was fixed.

The reasoning in The Product Star (No. 2) illustrates the point. Where the charter contemplated trading to a known war risk area and made express provision for extra war risk premiums, the shipowner could not rely on the war risk clause simply because the pre-existing danger continued. The risk had to be viewed against the commercial bargain actually made.

This does not mean that existing war risks are always accepted. If a charter gives a broad loading or discharge range, and only some ports in that range are affected by war risks, the shipowner may still be able to rely on the clause when the charterer nominates a dangerous port. The key question is whether the contract, properly construed, shows that the shipowner agreed to run that particular risk.

The Protected Interests: Ship, Master, Crew, and Cargo

The clause protects several interests. The ship may be at risk because of her flag, ownership, class, cargo, route, or commercial association. The cargo may be at risk because it belongs to a belligerent, is contraband, is politically sensitive, or is subject to seizure. The master and crew may be at risk because of nationality, immigration rules, internment, detention, or physical danger.

The use of alternatives is important. It is not necessary that every component of the adventure be threatened. A risk to cargo alone, or to crew alone, may be enough if it falls within the clause and affects performance of the voyage.

At Any Stage of the Adventure

The wording that refers to war risks at any stage of the adventure is broad. It covers the approach to the loading port, loading, the carrying voyage, arrival at the discharge port, and discharge. It may also become relevant where further performance of the contract would expose the ship to danger even though the peril would materialise near the end of the voyage.

There may be borderline cases where the threatened detention or danger would arise only after discharge has been completed. The safe port obligation ordinarily includes safe egress, but the war risk clause must be read according to its own wording. Where further contractual performance is the cause of the exposure, the clause may still be engaged, even if the practical consequences become most serious after the cargo has been discharged.

Cancellation Before Loading

Before the ship commences loading, the shipowner may have a right to cancel the charter if it appears that performance will subject the ship, master, crew, or cargo to war risks. The right is exercised by notice to the charterer. The traditional wording refers to letter or telegram, but modern equivalents such as email or other agreed written communication will usually be considered by reference to the parties’ contractual notice regime and commercial practice.

The timing of the cancellation right can be important. The wording points to the period before loading starts. Unless the charter provides a stricter time limit, the right may remain available until the commencement of loading, subject to waiver, election, estoppel, or conduct inconsistent with later reliance on the right.

A shipowner who knows of the risk and nevertheless behaves as if the voyage will proceed may create arguments that the right has been lost. Whether that occurs depends on the clarity of the conduct, the knowledge of both parties, and whether the charterer has relied on the shipowner’s conduct.

The Master’s Rights After Cargo Operations Begin

Once loading has begun, the master has important liberties under the war risk wording. He may refuse to load further cargo, refuse to continue loading, refuse to proceed on the voyage, or decline to sign bills of lading for an adventure or port that would expose the ship, master, crew, or cargo to war risks.

The wording gives the master a distinct role. This is commercially sensible because the master is the person in command of the ship and the person whose safety, liberty, and professional judgment may be immediately affected. Shipowners should not simply direct the master to invoke the clause without the master independently considering the relevant facts. If the contractual discretion belongs to the master, it should be exercised by the master.

As a practical matter, notice should be given when the master intends to rely on the clause. Even where the wording is not technically precise, the commercial function of the clause requires the other party to understand whether loading will continue, whether cargo already loaded will be discharged, or whether the ship will proceed with a part cargo.

Discharging Cargo at the Loading Port

If war risks appear after part or full cargo has been loaded, the master may elect to discharge the cargo at the loading port. This avoids forcing the ship into a dangerous voyage but creates practical issues regarding discharge costs, delay, cargo documents, freight, and the location of the cargo after discharge.

The clause does not answer every question with precision. If cargo is discharged at the loading port, the shipowner may seek to recover extra expenses under the war risk provisions, but the recoverability of time-related loss, demurrage, or lost earning capacity may depend on the exact charter wording. Discharging expenses are more naturally within the expression extra expenses than loss of use of the ship.

Where bills of lading have already been issued, additional complications arise. The shipowner may need to identify the cargo owner, respect rights under the bill of lading contract, and rely on incorporation of the war risk terms if claiming costs against cargo interests rather than only against the charterer.

Proceeding With Part Cargo

The master may choose to proceed with the cargo already loaded. If only part cargo has been loaded, the clause normally allows the ship to carry additional cargo for the shipowner’s own benefit. That completion cargo may be loaded, carried, and discharged even if doing so requires a route that is not the original direct route.

This liberty is wide but not unlimited. The shipowner should still act reasonably and should have regard to the interests of the charterer and cargo owner. A completion cargo should not be chosen or handled in a way that defeats the essential purpose of the original cargo carriage, damages the chartered cargo, or imposes an unreasonable deviation beyond the purpose of the clause.

If the master elects to proceed before full contractual cargo is loaded, the charterer may have a defence to a deadfreight claim. The logic is that the failure to load further cargo may result from the master’s own exercise of the war risk liberty rather than from the charterer’s breach.

Substitute Discharge Port After Departure

Where war risks arise after the ship has left the loading port, or after the master has elected to proceed with part or full cargo, the clause may provide for discharge at a safe port near the original discharge port. The charterers are usually invited to nominate the substitute port within a stated period, traditionally 48 running hours from the despatch of the shipowner’s request.

The substitute port must be safe and must be in the vicinity of the original discharge port. Vicinity does not necessarily mean the nearest possible port. Distance, route, cargo characteristics, available facilities, political circumstances, and the purpose of the voyage may all be relevant. The port must also avoid the war risk that made the original discharge impossible or dangerous.

If the charterer does not nominate a substitute port within the contractual period, the shipowner may choose a safe port in its discretion. That discretion should be exercised reasonably, although the shipowner may legitimately give weight to its own protection and the safety of the ship.

Discharge at the substitute port is treated as due fulfilment of the contract of affreightment. This is a major consequence. It means the shipowner is not in breach merely because the cargo is not discharged at the original port, provided the clause has been validly invoked and the substitute discharge complies with the clause.

Directions and Recommendations From Authorities

The clause commonly gives the ship liberty to comply with directions or recommendations concerning loading, departure, arrival, routes, ports of call, stoppages, destination, waters, discharge, delivery, or similar matters. The relevant directions may come from governments, belligerents, organised bodies involved in hostilities, persons acting with their authority, or committees and persons empowered under the ship’s war risk insurance.

This wording is intentionally broad. In wartime or near-war conditions, the ship may have little practical choice but to follow instructions from authorities controlling an area, convoy system, port access, navigational route, or war risk insurance approval. Compliance with such directions or recommendations is not treated as deviation.

Recommendations are broader than binding directions. They may include advice not to proceed to a destination, to delay proceeding, to use a different route, or to discharge at another safe port. A prudent master may be justified in complying with such recommendations where they fall within the clause and are issued by an authorised source.

Deviation and Due Fulfilment

One of the most important protections in the clause is that compliance with permitted war risk directions, recommendations, or substitute discharge provisions is not a deviation. This matters because unauthorised deviation can have serious consequences under carriage law and insurance practice.

Where the clause states that discharge at another safe port is due fulfilment of the contract, the shipowner’s performance is contractually transformed. The shipowner is not merely excused from performance; it has performed in the alternative manner permitted by the charter. This distinction may preserve freight rights and protect the shipowner against cargo claims based solely on non-delivery at the original port.

Freight Consequences

Freight issues under war risk clauses can be complex. Where the master proceeds with part cargo, the clause may provide that freight is payable on the quantity delivered. This is straightforward when freight is calculated per ton on delivered quantity. It is less straightforward where the charter provides for lumpsum freight, advance freight, freight payable on shipment, or freight calculated by reference to intake quantity.

The better approach is usually to read the war risk freight wording together with the main freight clause. The war risk provision should not lightly be treated as destroying accrued freight rights unless the language clearly has that effect. Where freight has already become due under the charter, the exercise of a war risk liberty will not necessarily undo that entitlement.

Where cargo is discharged at a substitute port under the war risk clause, the shipowner is commonly entitled to freight as if discharge had taken place at the original discharge port. The purpose is to prevent the charterer or cargo interests from arguing that freight has not been earned merely because the ship discharged at a different safe port in accordance with the clause.

Extra Expenses and the Shipowner’s Lien

The clause normally places extra expenses on the charterer and/or cargo owners where cargo is discharged at the loading port or where the ship proceeds to and discharges at a substitute port under the war risk machinery. Extra expenses may include additional bunkers, wages, victuals, port charges, discharge costs, and war risk insurance expenses where properly within the wording.

The word extra is important. It suggests a comparison between the expenses the shipowner would normally have incurred under the agreed voyage and the additional expenses created by the altered performance. Only the excess should normally be recoverable, unless the charter wording provides otherwise.

Time-related losses are more difficult. Demurrage and loss of use are not naturally expenses. They are usually treated as damages or compensation for detention. Unless the clause or laytime provisions are drafted widely enough, a claim for additional time may be harder to bring under the extra expenses wording. If demurrage had already started to accrue before the liberty was exercised, the position may be different because the accrued demurrage regime may continue.

The clause may also give the shipowner a lien on cargo for money due under the war risk provisions. The effectiveness of that lien depends on the contractual relationship, the incorporation of the clause into the bill of lading where cargo interests are concerned, and the practical ability to hold cargo as security at the place of discharge.

Waiver, Election, and Delay in Exercising Rights

War risk clauses are often designed to allow continuous review as conditions develop. A shipowner may decide not to cancel before loading, yet later face a more serious risk after cargo is on board. The master may initially proceed, yet later be required to discharge at another safe port. For that reason, the mere passage of time will not always defeat the right to rely on the clause.

Nevertheless, delay can matter. A party may lose a right by waiver, election, or estoppel if its conduct clearly represents that the known war risk will not be relied upon and the other party acts on that representation. For example, continuing to load with full knowledge of an existing war risk may support an argument that the master will not later discharge the cargo at the loading port on the basis of that same unchanged risk.

The analysis is fact-sensitive. The question is whether the conduct is clear and unequivocal, whether the risk was known, whether the circumstances later changed, and whether the other party was prejudiced by relying on the conduct.

War Risks and Safe Port Liability

Where the charterparty contains a separate safe port warranty, the war risk clause must be read with that warranty. If the war risk clause is a complete code for war-related danger, the shipowner may not be able to claim ordinary damages for breach of safe port warranty in respect of the same war risk. Instead, the shipowner may be limited to the rights, liberties, expenses, insurance costs, liens, and freight protections given by the clause.

The reasoning associated with The Evia (No. 2) supports this approach where the war clause gives the shipowner an effective veto over dangerous employment and provides a contractual mechanism for dealing with the consequences. The commercial logic is that the parties have allocated the war risk by express wording rather than leaving it to general safe port law.

War Risks and Frustration

A war risk clause does not automatically exclude the doctrine of frustration. If the clause fully and effectively provides for the supervening event, frustration may be avoided because the contract still contains a permitted method of performance. For example, if a destination becomes inaccessible by reason of war and the clause permits discharge at another safe port, the contract may continue through that alternative performance.

However, there may still be circumstances where the adventure is frustrated. If the ship is so badly damaged, detained, or prevented from proceeding that performance cannot be carried out within the range of contractual alternatives, the clause may not save the charter. Once frustration occurs, the charter ends by operation of law and the remaining contractual liberties may no longer be available.

The timing is therefore important. If the shipowner validly exercises a war risk liberty before the frustrating event takes effect, the range of permissible performance may expand and frustration may be avoided. If the charter has already been frustrated before the liberty is exercised, the attempted exercise may come too late.

Practical Drafting Points

War risk clauses should be drafted with precision because the consequences are serious. The parties should identify the war risks covered, the degree of risk required, the person entitled to decide, the method of giving notice, the time allowed for nominations, the meaning of substitute port, the treatment of freight, and the recovery of extra expenses.

Where the parties intend existing war risks to be accepted, this should be stated clearly. If the ship is to trade to a known danger area, the charter should say whether the shipowner may rely on the war risk clause only if the danger increases, or whether the shipowner retains a general right to refuse. Ambiguity on this point can create serious disputes after the fixture is concluded.

The charter should also clarify war risk insurance premiums, armed guards, convoy requirements, route deviation, additional bunkers, time lost, and whether demurrage or damages are payable for delay caused by compliance with war risk directions. A clause that deals only with expenses may not compensate the shipowner for all time lost.

Operational Lessons for Shipowners and Charterers

For shipowners, the central lesson is to document the decision-making process. War risk decisions should be based on reliable information, including insurance advice, government warnings, naval guidance, port notices, security reports, and the master’s assessment. The record should show honest and reasonable consideration rather than a bare assertion of danger.

For charterers, the key point is to respond quickly when the clause requires a nomination or alternative order. Delay may give shipowners a contractual liberty to select their own safe port. Charterers should also consider whether a nominated port avoids the relevant war risk and whether it satisfies the contractual standard of safety.

Both parties should remember that war risk clauses are not merely legal protections after a dispute. They are operational tools. Their purpose is to keep cargo, crew, and ships out of extraordinary danger while preserving a commercially fair allocation of freight, expenses, and performance obligations.

Conclusion

War risks in a voyage charterparty require a balance between contractual certainty and maritime safety. The shipowner should not be forced to expose the ship, cargo, master, or crew to war-related peril, but the charterer should not lose the bargain because of unsupported fear or opportunistic refusal. The clause therefore depends on careful construction, objective risk assessment, proper notice, reasonable exercise of discretion, and a close reading of the freight and expense machinery.

When properly drafted and properly used, a war risk clause can prevent a dangerous situation from becoming a breach, a deviation, or a frustration dispute. It gives the parties a contractual route through blockade, piracy, hostilities, civil unrest, substitute discharge, official directions, and additional costs, while preserving the core commercial purpose of the voyage as far as safety and legality allow.